New $14.2B Broadband Affordability Program Open to All Broadband Providers

Kelley Drye Client Advisory

On Thursday, November 18, 2021, just days after President Biden signed the bi-partisan Infrastructure Investment and Jobs Act (aka Infrastructure Act”) into law, the Federal Communications Commission’s Wireline Competition Bureau (WCB) released a Public Notice setting forth a 60-day rulemaking process designed to implement the statute’s Affordable Connectivity Program (ACP) provisions.

While the final rules will not be available until a final order is adopted, which is expected by January 14, 2022, the program will launch on December 31, 2021.  Here’s what we know now – a roadmap for current Lifeline and Emergency Broadband Benefit (EBB) providers, as well as for fixed or wireless broadband providers seeking to participate in the ACP.

Lifeline eligible telecommunications carriers (ETCs) and EBB providers likely will be able to begin to enroll subscribers in the new ACP on December 31, 2021.  Others may have to wait.  If your company has been considering applying to participate in the EBB, the window for doing that likely will close soon.  The window to apply to become a new ACP provider may not open until on or after January 14, 2022.  Whether you want to get into the EBB as a means of ensuring the ability to participate in the ACP on December 31, 2021 or if you prefer to wait until all ACP rules are clear, we can help with the application and election notice process.

Existing EBB subscribers may continue to receive EBB benefits for 60 days after the EBB program sunsets on December 31, 2021.  What, if anything, these subscribers will need to do in order to continue to receive benefits is unclear beyond the fact that the eligibility of subscribers who qualified for EBB based on eligibility criteria that will sunset with the EBB (i.e., loss of income or participating in a provider’s COVID-19 program) will need to be re-verified before the end of the 60-day transition period pursuant to guidance forthcoming from WCB.

New EBB subscriber eligibility verification and enrollments are likely to end several days prior to December 31, 2021, because time will be needed to convert USAC processes from EBB to ACP.

The Bureau is expected to issue more guidance in late November and as necessary thereafter to ensure a smooth transition from EBB to ACP.  Stay tuned for more updates that are expected to include waivers of current EBB sunset rules (which had not anticipated program replacement), as well a technical guidance regarding USAC’s National Verifier and NLAD.

USAC is expected to host webinars in December to help providers navigate changes in the National Verifier and NLAD environments.  It remains unclear whether any changes to APIs are anticipated.

There’s plenty to do now to get ready for ACP program launch.  Between now and ACP program launch on December 31, 2021, service providers should be planning process changes and customer facing communications regarding the program and plan changes, which will include a reduction of the maximum non-Tribal subsidy from $50 to $30.  Tribal subsidies will remain at up to $75 monthly.  Connected device subsidies of up to $100 will remain available under the ACP, but the Public Notice proposes to exclude support for devices manufactured by any companies included in the covered list pursuant to the agency’s national security and supply chain proceeding.  Additional subsidies will be available to eligible Lifeline subscribers served by Lifeline ETCs. There will be at least a two week gap where the ACP will be operational in advance of the program rules being adopted.  We recommend consulting with attorneys to ensure that statutory requirements are covered and to mitigate risks during the transition period.

Here’s a check list for current Lifeline and EBB service providers seeking to transition smoothly into the ACP.

Identify the service plans you will make available to EBB subscribers (note that all plans need to be available, but certain plans may make more sense to market to low-income households than others, which will also be impacted by whether the customer is eligible for state and federal Lifeline support)
Formulate consumer notices and disclosures
Update website plan descriptions and tariffs, as needed
Update EBB FAQs and terms
Post ACP FAQs and plans
Update app and web flow for new ACP applications/enrollments
Attend USAC webinars to learn of process/operational changes
File necessary Advice Letters in California

For those would-be new entrants into the ACP, here’s a quick primer.

What:  $14.2 B subsidy program to promote affordable access to broadband.

Who it serves:  Eligibility includes all Lifeline eligibility triggers and more but not all EBB triggers.  Loss of income or participating in a provider’s COVID-19 program are no longer qualifiers, but income up to 200% of the Federal Poverty Guidelines is (up from 135% for EBB) as well as participation in the special supplemental nutritional program for women, infants and children (WIC).

Who can be a participating provider:  Any fixed or mobile broadband provider; no ETC designation required.

When:  The permanent ACP starts December 31, 2021 with a budget expected to last for 5 years.

Entry requirements:  Any federal or state requirements to be a broadband provider (e.g., state wireless registrations).  WCB application (not needed for ETCs and providers already approved to provide EBB) and USAC election notice.  USAC Interconnection Security Agreement.  Consumer-facing materials, disclosures and processes.